Registrar, Alcohol and Gaming Commission of Ontario v. Fernandes, 2008 CanLII 52561

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The :

Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission of Ontario

Registrar

-and-

Victor Fernandes and Maria Fernandes intending to operate as Halfway Café

Applicant

-and-

Lyanne Lynch

Objector

DECISION

Panel: Brian J. Ford, Board Member S. Grace Kerr, Board Member

Decision Date: August 15, 2008

Hearing Location: Cambridge, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Brad Alton, Representative Victor Fernandes and Maria Fernandez, Applicant ) Charles Montgomery, Representative ) Resident Objector, on her own Lyanne Lynch ) behalf

The Application

1. The Registrar of the Alcohol and Gaming Commission of Ontario issued Notice of Proposal number 16264 dated May 12, 2008, to review an application for a liquor sales licence from Victor Fernandes and Maria Fernandes, (the “Applicants”) operating as Halfway Café, 57 Princess Street, Glen Morris, Ontario, N0B 1W0, (the “Premises”), for the indoor and outdoor areas of the premises with capacities of 48 and 14 on the basis that the AGCO has received one or more written objections to the application from residents of the municipality. A hearing of the Application was held on June 30, 2008 in the City of Cambridge.

Decision

2. After considering all the evidence and submissions the Board APPROVES the Application. Reasons follow.

Preliminary Matters

3. Brad Alton appeared on behalf of the Registrar. He advised the Registrar took no position on the public interest aspects of the hearing.

4. The Applicant was advised of the right to legal counsel, but waived that right. Mr. Montgomery is a “friend” who attended to help Ms Fernandes with the hearing.

5. Lyanne Lynch is a resident of the municipality and objects to the Application for licence. She appeared before the Board on her own behalf. On consent of all parties, the Board ordered that Ms Lynch be made party to the proceedings.

Applicants’ Evidence

6. Mrs. Maria Fernandes testified on behalf of the Applicants. She and Mr. Fernandes purchased the property in April 2004. From there, they operate several businesses including a post office, small grocery/variety store, and gas station in addition to a restaurant which they seek to license. A small patio, seating 10 persons, was recently built to add to the restaurant business.

7. If this application is approved, the Fernandes intend to eventually close down everything but the restaurant business. The food aspect of it was described as “their passion” and the most financially successful of their businesses. The ability to serve alcohol would simply be an “added feature”. They are extending their menu to offer specialty coffees and teas, more variety of entrees, featuring home-cooked meals once or twice per week or things like ‘pig-roasts’ on Saturdays.

8. Taxi service is available to the village of Glen Morris, if a call is made. This has been done in the past for customers who found themselves stranded; service was prompt.

9. While school children used to come into the store about once per week, they rarely do so now because the school break has been shortened to 20 minutes.

10. The Fernandes put their property on the market for sale in October 2007 and it remains on the market. Since then only one person looked at it, but made no offer. They made application for a liquor licence in March 2008. If successful, they do not intend to sell the property.

11. There are video surveillance cameras inside and outside the premises.

12. Mr. and Mrs. Fernandes run all of the businesses, together with their daughter. They have no other employees. They do not have any experience with alcohol service, although Mr. Fernandes has volunteered for the Portuguese Club for a couple of years. Mrs. Fernandes said she understands that everyone involved with the licensed premises will need to undertake such training.

Objectors’ Evidence

13. Ms Lyanne Lynch testified on behalf of the resident objectors. She has lived in the “bedroom” community of Glen Morris, which she described as not a municipality per se, for 18 years. Glen Morris has a population of “perhaps 500-600” persons, no commercial base and presently no licensed establishments.

14. Ms Lynch articulated the objectors’ concerns as follows. Those persons who frequent the establishment will largely have to drive there. People who drink do not exercise good judgment with respect to driving, yet there is no local taxi company or public transit the patrons could access instead. The establishment is close to a public elementary school; children go there regularly to buy “pop and French fries”. The licensed premises will be operated downstairs to the Fernandes’ residence, alleging that this contravenes subsection 10(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”). According to Ms Lynch, that this property has multiple uses allegedly contravenes subsection 23(1) of the O. Reg, which is also a concern to the objectors. Finally, Ms Lynch wonders who will ultimately operate the business if a licence is granted, given that it is currently listed for sale. She speculates that perhaps the application has been made in hopes of making the business more saleable.

15. In cross-examination, Ms Lynch acknowledged that the liquor licence, if granted, will need to be transferred if the business is sold. She also believes that the Applicants are responsible people.

16. Mr. William F. Hancock also testified on behalf of the objectors. He has lived in Glen Morris for 20 years. He expressed two main concerns to a licence being granted. First, since there is no local taxi service, he has “visions” of people congregating at the establishment, not having access to a taxi and then driving while under the influence of alcohol. His second concern is of a security nature. The area has limited police service. Furthermore, since there are no street lights and limited sidewalks, locals who walk at night would be put at risk by patrons leaving the establishment.

Applicants’ Submissions

17. The Alcohol and Gaming Commission will routinely inspect the premises and generally ensure that the premises are being operated competently.

18. The Applicant will operate the licensed establishment as responsibly as they have run their other businesses in the past.

Objectors’ Submissions

19. It is not appropriate for the Applicants to be given a licence since there is no certainty as to when they will phase out their gas station, variety store and postal services operations. If the Applicants will sell their property, the Board does not know to whom the licence will be transferred, which is a concern.

20. In any event, the Applicants’ present arrangements contravene subsections 10(1) and 23(1) of the O. Reg.

Analysis/Reasons/Conclusion

21. At issue in this hearing is whether granting this application for a liquor licence is in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located. Given the circumstances of this case and the evidence adduced, and for reasons detailed below, the Board FINDS that the objectors have failed to meet the onus, which is upon them, to show that it is not in the public’s interest for this application to be granted. Accordingly, the Application should be APPROVED.

22. In their evidence, the objectors acknowledged that the Fernandes are responsible business operators; the Board finds likewise. Mrs. Fernandes testified that she and her husband are endeavouring to build the food service aspect of their business and that they do not intend to operate their restaurant as a bar. Rather, as one part of their overall plans to build their food service business, the Applicants have requested a liquor licence. They most enjoy their food service/restaurant over all of their other businesses and they have been successful in some food catering jobs they have obtained. Also, they plan to expand their menu, offering home cooked meals, specialty food days, and the like. The Board accepts all of this evidence as credible and concludes that the Applicants have reasonable plans to develop their food service/restaurant business.

23. While the Board does not doubt the apprehensions expressed by the objectors are genuine and appreciates their contributions to the hearing, their concerns do not relate directly to this Application, or more importantly, to the manner in which this establishment will be operated. The Board may not make its decision based on conjecture and speculation about the potential negative impact of a licensed establishment.

24. Two of the objectors’ concerns require specific address, however. The first is their subsection 10(1) argument. This section states that “Premises used as a dwelling must not be used for the sale of liquor”. The Board finds that subsection 10(1) of the O. Reg is not breached by this Application. While the areas to which the liquor licence will apply are located within (the restaurant) or lie adjacent to (the patio) the same building that houses the Applicants’ personal residence or dwelling, they are not one and the same. The photographs contained in Exhibit 4 clearly demonstrate that the areas of the building used for the restaurant and patio are quite separate and distinct, both in space and function, from that portion of the building which constitutes or forms the Fernandes’ personal residence or dwelling.

25. The Board also finds that subsection 23(1) of the O. Reg is not breached by this Application, as submitted by the Objectors. Subsection 23(1) states that, “The licence holder shall not operate or permit to be operated at the premises to which the licence applies any business other than, (a) the sale and service of liquor and food; (b) the sale of articles incidental to the sale and service of liquor and food; (c) the sale of lottery tickets distributed under a government licence; or (d) the provision of entertainment ancillary to the sale and service of liquor and food”.

26. Again, the Exhibit 4 photographs show that the Applicants’ other businesses are separate and distinct from the areas to be licensed, physically and also functionally. Further, this Application does not contemplate nor would it encompass the operation of any of the Applicants’ other businesses from the premises to which the licence would apply. More generally, the Applicants will be bound by all laws and regulations relating to the sale and service of alcoholic beverages (e.g. to not permit its carriage from licensed to non-licensed areas, not to permit drunkenness, and the like). The non-contradicted evidence is that the Applicants have operated all of their businesses responsibly to date; the Board is confident that the Applicants will exercise their responsibilities as licence holders in a similar manner. Finally, the Applicants have stated their intention to phase out their other businesses as part of their plan to focus on and develop their restaurant business, which would render the Objectors’ argument moot in any event.

Order

28. For the above reasons the Board APPROVES the Application for liquor licence made by Victor Fernandes and Maria Fernandes for the indoor and outdoor areas of the premises with capacities of 48 and 14 at Halfway Café, 57 Princess Street, Glen Morris, Ontario, N0B 1W0, subject to all statutory conditions and municipal regulations.

DATED AT TORONTO, THIS 15th day of August , 2008.

S. GRACE KERR, BOARD MEMBER BRIAN J. FORD, BOARD MEMBER

SGK/ee